MIT Defends Its 'Neutral' Stance On Aaron Swartz As 'Reasonable' Even As It Failed To Understand Importance Of The Case

from the sometimes-remaining-neutral-is-a-bad-thing dept

It's taken some time, but the report that MIT's President requested from professor Hal Abelson concerning MIT's roles in the prosecution of Aaron Swartz has now been released. It's quite detailed and well worth reading. The "bottom line" is that it argues that MIT did its best to "stay neutral" throughout the entire process, and that this was a perfectly reasonable legal strategy, though, possibly not the best ethical strategy. MIT's President, Rafael Reif, has issued a letter with the report, stating that "I am confident that MIT's decisions were reasonable, appropriate and made in good faith." Taren Stinebrickner-Kauffman quickly hit back, arguing that the claim that MIT was "neutral" is not very convincing:

MIT’s behavior throughout the case was reprehensible, and this report is quite frankly a whitewash.

Here are the facts: This report claims that MIT was “neutral” — but MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence. That’s not neutral. The fact is that all MIT had to do was say publicly, “We don’t want this prosecution to go forward” – and Steve Heymann and Carmen Ortiz would have had no case.

Separately, she contrasts MIT's behavior with JSTOR's -- the organization which really had the only legitimate (and even then a weak legitimacy) claim to any "harm" from Swartz's actions. JSTOR very publicly made it known that it did not support the prosecution and did not wish to see Swartz prosecuted. MIT took a very different approach. From the summary of the paper:

MIT never requested that a criminal prosecution be brought against Aaron
Swartz. Early in the prosecution by the U.S. Attorney’s Office in Boston (the
“USAO”), MIT adopted a position of remaining neutral, with limited
involvement. MIT hired outside counsel who had experience in criminal law
and in the functioning of the Boston U.S. Attorney’s Office; and MIT
requested and received subpoenas for the production of documents. Some
documents were turned over to the USAO prior to receiving a subpoena, but,
for the reasons discussed in this report, this production did not violate federal
laws.

In keeping with its stance of neutrality, MIT never issued a public statement
about Swartz’s prosecution or advocated publicly on his behalf, even though
doing this was urged by Aaron Swartz’s family and legal team and by two
members of the faculty. One of the reasons for MIT’s silence was the good-faith belief, based on private conversations with the lead prosecutor, that the
Institute’s opinion would have no effect on the prosecution, and that public
statements might make circumstances worse for Aaron Swartz. MIT did
inform the prosecution that it was not seeking punishment for Swartz, and it
did inform the defense that it was not seeking any civil remedy from him.

The report also claims that, basically, no one in "the MIT community" seemed to care about the story until after Swartz's death, which seems like a bit of a cop out. Also, there's this:

MIT took the
position that U.S. v. Swartz was simply a lawsuit to which it was not a party,
although it did inform the U.S. Attorney’s Office that the prosecution should
not be under the impression that MIT wanted jail time for Aaron Swartz. (MIT
did not say it was actually opposed to jail time.)

Basically, this policy of "neutrality" may have been legally reasonable, but could still be seen as highly questionable given MIT's role as an institution of higher learning -- one that famously encourages open exploration and sharing of knowledge and information, as well as some element of hacking. I think David Weinberger makes the right point here:

When Pres. Reif writes that MIT’s actions were “reasonable, appropriate and made in good faith” I think we have to ask “Appropriate to what?” To MIT’s interests as a legal entity? Very likely. To MIT as a university? Not in my book.... MIT’s timid “neutrality” wasted an opportunity to stand against the unreasonable and inappropriate tactics of the prosecutors, and to stand for the spirit of inquiry, openness, innovation, and risk-taking that has made MIT one of the world’s great universities.

I understand that MIT wasn’t going to say that it was fine with Aaron’s breaching its contract with JSTOR. But MIT could have stood against prosecutorial overreach, and for the values— if not the exact actions— Aaron embodied.

That's exactly right. Sometimes taking a neutral stance on an issue of great importance is the equivalent of making the wrong choice. MIT missed the boat here.

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why.

As Lessig points out, this makes the tragedy of the situation even worse. Not only did MIT try to take a "neutral stance," nobody either at MIT nor among the prosecutors ever even bothered to figure out if Swartz's access really was unauthorized.

"That's exactly right. Sometimes taking a neutral stance on an issue of great importance is the equivalent of making the wrong choice. MIT missed the boat here."

There's that quote about the only thing that needs to happen for Evil to win is that Good does nothing. While it may be simplistic, it has the nugget of truth. (Also, Evil wins when Good is Dumb.)

Doing nothing, or remaining neutral, is lazy. And hiring lawyers to do what is legally justifiable without investigating what is ethically correct (or even ethically reasonable) is showing how little you care.

Re: wait...

As Lessig points out, this makes the tragedy of the situation even worse. Not only did MIT try to take a "neutral stance," nobody either at MIT nor among the prosecutors ever even bothered to figure out if Swartz's access really was unauthorized.

Wow. That is looking less like neutrality and more like outright negligence with "neutrality" as a cover for pure laziness.

Hell, this type of negligence is indistinguishable from malicious omission of proper action.

Re:

oh, it gets even worse:
just read a brief article on the raw story which pointed out another couple egregious actions on the part of the scumbag authorities:

1. persecutor got pissed when Aaron tried to stand up for himself and the Demand Progress petition got circulated...
in other words, the fucker didn't 'like' that was happening, and *THAT'S* when they went full bull-goose looney on Aaron, 'cause he was embarrassed... fucking pricks

2. as you point out, the WHOLE CASE hinged on 'unauthorized' access, but MIT NEVER WAS ASKED SPECIFICALLY what the technical ins-and-outs of that was, AND apparently their 'policy' TOS bullshit is NOT entirely clear on that point either...

3. MIT spent MORE on responding to the persecutors than they did on the actual 'hack' (sic) (in fact, i bet they didn't REALLY spend anything at all: it was probably nerds on salary who didn't get paid any extra, just their normal wage, whether they were examining logs, or doing their normal pron surfing...

oh, and to top it off, when MIT was concerned with how their rep was being tarnished, blah blah blah, the persecutor blamed *that* on Aaron too, in that if only he had plead guilty guilty guilty, all the adverse publicity could have been avoided...

fuckers, stand up for your rights against the feds, and they get vindictive...
dog damn i hates my (sic) gummint...

182 page report and you copy-paste almost all of what Taren says in a post less than an hour after the report comes out? She certainly couldn't have read the whole thing, but it's easy to reject the premise of her thinking (and indicative that she's understandably just reacting with emotion) based on this statement alone:
"Here are the facts: This report claims that MIT was “neutral” — but MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence."

That's not how any of it works! Even if you've learned everything you know about our legal system from My Cousin Vinny, "He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises." The defense had access (and spoke to a number of people at MIT) to the same stuff the prosecution did.

Breaking into a wiring closet was certainly unauthorized (hell, one could even argue that the No Trespassing sign on that building made the question of access unauthorized, but I won't here because MIT is an open campus). Disabling his computers from accessing the network 3 times - certainly made it unauthorized. If he'd been charged with breaking and entering (like I think he should've, and that's as far as it should've gone once JSTOR was satisfied upon getting drives full of their stuff back) it would've easily been shown that his access to that wiring closet wasn't authorized.

The rest of this was a violation and abuse of the terms of service and NO ONE at MIT (nor would anyone here) would say, "attaboy, that's the way you show the man and make these paywall systems that hold our research change for the better..." What he did was idiotic, the feds chose to prosecute egregiously, and nothing MIT was going to say or do was going to make them stop. It's a common misconception that you can say "I don't want to press charges" and a prosecutor will abide -- they were out to make an example of Aaron, plain and simple. Should MIT not been so adamantly neutral and have released a statement a la JSTOR saying "we're satisfied and don't wish to see any charges brought"? Yes. Would it have made a difference? No. Federally issued subpoenas compel cooperation. There's really no more to it than that.

Re:

Breaking terms of service is not criminal. And he, like anyone else on MIT's network, was authorized to view those articles.

And yeah, I'll cheer him on for doing what he did. Not for some absurd thing about 'sticking it to the man'. We'll never know what he really intended to do with all of the data, but something that resulted in a more open and free sharing of information would've fit what we know about him and I would fully support that.

We'll never know whether MIT telling the feds not to prosecute would've caused them to think twice. But it certainly would've been interesting for the case if both JSTOR and MIT were saying there was no harm done. Especially if the feds were trying to hang their case on the absurd notion that violating a private company's TOS is criminal. It would have been laughed out of court.

Re: Re:

Breaking terms of service is not criminal. And he, like anyone else on MIT's network, was authorized to view those articles.

Absolutely not - and that's why the horribly outmoded and vague CFAA must be changed. Just want to be clear that I was emphasizing (unclearly on a re-read) that it was indeed merely a ToS violation. A sticky spot for MIT to be in with JSTOR due to the reliance of its population on the service.

something that resulted in a more open and free sharing of information would've fit what we know about him and I would fully support that.

Here's the thing, though. And I'm sure you know this: JSTOR provides a service of categorizing, indexing, searching and hosting these papers, and that bandwidth/staff/hardware costs money (probably not as much as they charge, but...). IMHO a release of an 80gig tarball or zip of the content would be useless to most and ignored by many (that is, subscribers to JSTOR wouldn't stop subscribing just because this stuff was freely available, and with a pile of unsorted, un-indexed pdfs, there's not much one can do with them). If that's what he intended to do with the data (somewhat likely).

As someone who was an activist, who'd started many campaigns and rallied many people in many different ways, who wanted so badly to see change -- and I fully appreciate that these days it takes a 2x4 to the head to get people's attention and try to move the apathetic -- this was the completely wrong way to go about instigating that kind of change.

I'd love to see the research that we fund move to a more open and free platform - some of these platforms do exist, so the spirit is willing - but the academics have to currently go where the market is 'buying' their research (the widest audiences to cite their works). I say 'sticking it to the man' because that's the kind of move that it felt like, rather than a move from someone who actually knew how to motivate people, form activist groups, and who possessed a voice that people really listened to.

Re:

There are some rare few people who manage to be honest with themselves about themselves. But those are individuals. It would take an exceptionally strong such individual with an extreme amount of control over a relevant organization to get that kind of honesty beyond the scope of an individual.

Re:

Actually as I understand it, the laptop wasn't hidden. It happened to be in a closet where the network access was - if the network wires were coming out of holes in the walls, that's where the laptop would have been too.

The weirdest thing about this case is that every party might have actually thought they were doing the right thing. The problem is that even bullies think that very same way. MIT claiming “neutrality” is the same proclaiming innocence. When bad things happen, even by inaction or ignorance, there is plenty of blame to share amongst all the participants. Hiding behind bureaucracy is in reality a “head in the sand” approach. (Psychologically, kind of boring. Is this grade school?)

This behavior also falls under the category of “angel theory.” Its extremely common for criminals, corrupt officials, bullies and the ignorant alike to don a halo the moment their errant/stupid/thoughtless/brutal/etc activities are discovered or brought under the hot light of critical examination. There are several obvious stages of progression in such school room misbehavior.

Stage One: The bullying and miss-behavioral activity(s) itself. The Aaron Swartz case ended in death. Yes he took his own life but of the apparent bullying and outright threatening made upon the life of Aaron at the knowing or unwitting hands of MIT, JSTOR and the DoJ? (The likely scenarios are murder, belligerence, negligence or even corruption?)

The magnitude of the accusations and threats/bullying were so large and out of proportion, to the actual suspected deeds, that its easy to sympathize with Aaron's plight. (no charges were filed, only sealed indictments, which is serious enough) This is way to polite an explanation for completely and obviously shameful behavior.

Stage Two: Place the Halo over the head and smile like innocent angel. Who, Me? No way! All JSTOR, MIT and the DoJ wear bright and shining hallows of innocence but is there a bit of tarnish on the hallows backside? Is that a wire holding up the halo on the sides? Is that an electrical cord threaded through the pant leg and plugged into the wall outlet? Dose it look crooked when looked at from another angle?

Stage Three: Blame. Its basic procedure for a guilty party to blame everyone else. (Its your fault I did it.) If that does not work then blame society and culture. (It was the legal climate at the time that made me do it. I killed you because of orders from a superior officer. “Fire!”) Finally an insanity defense however a “hail Mary pass” that might be. (It was my gut instinct.)

Its a credit to MIT that they do not publicly assign blame to Aaron Swartz. Its possible that MIT's imaginary halo looks more respectable? They at least wear it better.

Stage Four: (Only if you are Bart Simpson) “I didn't do it!” “Nobody saw me!” “You cant blame me!” MIT will likely perpetuate its claim of neutrality but is their report itself a tacit finger pointing upon the DoJ? The DoJ, likely, claims that everything was proper and legal? That all their behavior was righteous and correct? That no procedures were violated? In this case does the DoJ credibility wear out?

The next batter up in this mortal/horrible reality is the DoJ. What is their response? Its likely they might need some prodding since the case is probably filed under the DoJ's carpet by now. Possibly even the round file cabinet.

–

Halo's aside. Keep in mind that this is only a “report” produced by the upper uppity ups of MIT. As such its classic that they are one sided publicity minded, public relations worded, fluffy fluffy newspeak. Any insider generated and edited report would most likely skim over any institutional embarrassments and provide some, even if weak, plausible reasoning for their actions. This is not an overly cynical approach when average institutional behavior is factored in.

--

Of course where is the evidence. The e-mails and other correspondence internal to the DoJ for examination? Who really made the original accusations and who then perpetuated them with such obvious virulent manor that Aaron felt he had no recourse? DoJ transparency?

–

Unspoken is the relationship between MIT, JSTOR and the DoJ. Who was egging on who? MIT's report suggests it would be the DoJ who was the instigator and driver of the overbearing relentless prosecution of Aaron.

MIT's statement of neutrality sounds nice but they did not say they would not testify, or at least resist testifying, in the case. Neutrality, after the fact of the original statements, was not be good enough to prevent an eagerly and relentlessly perused prosecution. Neutrality is really saying “do what you want.”

To bring charges against Aaron the DoJ assumed damages to MIT (p140) at a value of $5,000 bucks. This is a questionable amount since JSTOR only settled for $1,500. (attorney’s fees may be awarded but they are not damages.) Since no justification or anything is submitted by MIT to back this up its just speculation.

Not mentioned is the legal action of JSTOR against Aaron Swartz which had settled. Its hard to say they have clean hands. JSTOR (p42) is listed as receiving $1,500 usd plus $26k attorney fees from Aaron Swartz. It may have been a mistake for Aaron to settle for this amount. Once a man eating tiger gets the scent of human-meat/money... Pounce! (p52)

JSTOR (p141) was quite explicit in outlining the digital duplications performed as harm upon their usage load (nonsense) and business model. (The real profit from publicly funded research “ugly reality” rises.) Although they did state they did not support any further criminal proceedings they did not say they would not testify. (More supposed neutrality nonsense? Public relations doublespeak?)

No damage to the computers was done and nothing had to be repaired or reprogrammed. No physical harm was done in any way. There might be a weak rational for unauthorized locker access but unlawful is way overboard. (p135) In fact its common, and even encouraged, for university students to come up with novel approaches to limited facilities. Its not like he violated the university's TOS or rules of usage or anything. (which is what the CFAA charges were based on?) Since MIT already had copy privileges from JSTOR that point is mute. Calling it White Hat hacking is even too much.

The CFAA is so poorly/badly worded that its one of “those” laws that makes EVERYONE a criminal. No exceptions. Other examples of law that everyone (you, your kids and grand parents...) is guilty of violating: Drug and Copyright monopoly laws. For the prosecution to peruse such an obviously weak case with such an apparent rabid way is beyond any reasoning.

Was Aaron guilty of anything at all? Certainly. He was and activist who acted on his beliefs and as such reached an ideal rarely achieved by the common person. His stated goals were well within the realm of American Culture of Freedom of Ideas and Knowledge. Especially when the knowledge and ideas (research) he wanted to provide access to were funded by the American public.

Who knows. There are obviously many more things unknown about Aaron Swartz's untimely death than is currently understood. Why are such cases so non-transparent? Since the statements, or silence, by the involved parties seems empty the flags of suspicion are raised higher.

Since almost all Constitutional points have been ignored by the DoJ its another shocking loss of American Culture. Even after over 35,000 signatures were gathered in a petition for his relief.

Surely society was overly harsh on him for its own culture of selfish commercial/industrial reasons.

I understand that MIT wasn’t going to say that it was fine with Aaron’s breaching its contract with JSTOR.

Er, say what? If Alice and Bob enter into a contract, there is no way for Eve to "breach Alice's contract with Bob", other than if Eve is an agent of Alice or Bob whose actions can reasonably be considered to be, indirectly, the actions of Alice or Bob.

For instance, Eve could be an employee of Bob, Inc. and does something in that capacity that violates the company's contract with Alice.

However, a student at a university cannot generally be regarded as an agent of the university, and the university thus cannot be held responsible for his or her actions, which thus cannot breach any contract between the university and any other party.

If Aaron had been an MIT *employee* and had downloaded the material from JSTOR in that capacity, then, and only then, might he be able to breach a hypothetical contract between MIT and JSTOR.

(If MIT contracted with JSTOR that it wouldn't let its students download more than X amount per day per student or something, then MIT breached the contract all by itself, perhaps by not using technical measures to prevent Aaron from exceeding the hypothetical quota. They made a promise they couldn't, or wouldn't, keep; no one else's responsibility but theirs for doing so. I think contract law also makes allowances for an entity inadvertently breaching a contract they made every effort not to breach.)